Judge Rules Drug Documents Must Be Returned to Eli Lilly

A federal district judge in Brooklyn ruled yesterday that confidential marketing materials belonging to Eli Lilly & Company
about its top-selling anti-psychotic drug Zyprexa must be returned to
the company by a doctor and a lawyer who, the judge said, engaged in a
scheme to leak them to the news media.

The documents were
part of evidence provided by Lilly as part of a lawsuit filed by
patients who claimed that side effects from Zyprexa caused excessive
weight gain and diabetes.

In the 78-page decision, Judge Jack B. Weinstein
of Federal District Court ordered Dr. David Egilman, a special expert
for the plaintiffs, and James B. Gottstein, a lawyer in Alaska, to
return the documents to Lilly.

A New York Times
reporter, Alex Berenson, was given a copy of the documents, which
showed that Lilly executives had kept information from doctors about
Zyprexa’s links to obesity and higher blood sugar, a claim Lilly has denied. He wrote front-page articles based on the information.

Eli
Lilly has now paid $1.2 billion to settle more than 28,000 cases from
individuals who contended that they developed diabetes or other
diseases from taking Zyprexa.

In the ruling, Judge Weinstein said
Mr. Berenson obtained the documents after he discussed with Dr. Egilman
ways to circumvent a protective order. Mr. Berenson put Dr. Egilman in
touch with Mr. Gottstein, the judge said, so that they might “employ a
pretense to subpoena the documents.” According to Judge Weinstein, the
documents were sent to Mr. Gottstein via an expedited subpoena, which
Lilly was unaware of. Mr. Gottstein then sent the papers to Mr.
Berenson and others.

No other news organizations received the
documents, the judge said, because Mr. Berenson told Mr. Gottstein that
if the material was not delivered exclusively to him, the newspaper
would not publish an article.

Mr. Berenson did not appear at an
earlier hearing on the matter, where he was invited to testify. George
Freeman, a lawyer for The New York Times Company, said that as a matter
of “long-held principle,” the company believed it would be
“inappropriate for any of our journalists voluntarily to testify about
newsgathering methods.”

In a statement yesterday, Mr. Freeman
said: “For the reasons set forth in our letter responding to Judge
Weinstein’s invitation, we declined to testify voluntarily about our
newsgathering methods. Unfortunately, that resulted in an opinion which
vastly overstates Alex’s role in the release of the documents. We
continue to believe that the articles we published were newsworthy and
accurate, and we stand by them.”

Mr. Gottstein, who is president
and chief executive of the Law Project for Psychiatric Rights, said, “I
was just trying to follow the law.”

He said that a subpoena
allowed him to adhere more closely to the protective order than if Dr.
Egilman had given the documents directly to Mr. Berenson.

A
spokeswoman for Eli Lilly, Marni Lemons, said: “Our adversaries
carefully selected the documents to tell a story that they wanted to
tell. These cherry-picked documents in no way reflect the strategies or
activities of Eli Lilly & Company. Lilly feels vindicated because
the judge issued an injunction that prohibits future wrongdoing by
those who took the law into their own hands."

While the judge
asked Mr. Gottstein and Dr. Egilman to return the documents, he did not
ask Mr. Berenson to do so. Many of the documents are available on the
Internet and the ruling does not ask that any newspaper or Web site
take any action with regard to the papers.

Judge Weinstein
reserved some harsh words for Mr. Berenson, whose conduct he called
“reprehensible,” and for The Times, pointing out that unlike the case
of the Pentagon Papers, in which classified government documents were
given to a Times reporter, “here a reporter was deeply involved in the
effort to illegally obtain the documents.”

The judge said that
the documents’ disclosure posed “significant risk of harm to Lilly,”
and that their “out of context” appearance in the news media might
“lead to confusion in the patient community and undeserved reputational
harm.”

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